Phone seizure OK, says judge

By Ashley Bunton -

A motion to suppress evidence in an alleged rape case was overruled.

Steven P. Beathard, Fayette County Court of Common Pleas Judge, oversaw the recent hearing proceeding which went on for nearly an hour.

At hand was the issue of whether or not the detectives were within reason to seize the defendant’s cell phone—which they believed was used to communicate with the alleged victim—without a warrant.

Justin C. Hobbs, 20, was arraigned in May on 68 felony charges for rape and nudity-oriented material with a minor. Ten of those charges were handed down by a Fayette County grand jury in March—seven counts of rape and three counts of gross sexual imposition with a minor. Following a search of Hobbs’s cell phone, he was indicted on an additional 58 counts—illegal use of a minor in nudity-oriented material or performance.

Hobbs, from Washington C.H., and his attorney Brad Koeffel filed a motion to suppress evidence after Hobbs’s cell phone was seized without a warrant in September 2015. Koeffel said the fourth amendment applies to search and seizure equally. Under the fourth amendment, people have a right to be protected from unreasonable search and seizure.

Ryan McFarland, Fayette County Sheriff’s Office Lieutenant, was called to investigate the sexual assault complaint.

He testified at the hearing, saying that through the investigation they determined the alleged acts may have taken place inside of a Toyota truck. A search warrant was obtained for the truck, which McFarland said Hobbs was known to drive, and it was towed to the sheriff’s annex and secured.

Hobbs was asked to come into the annex for an interview. Camera and audio equipment recorded the entirety of the interview.

“I wanted to discuss the allegations made against him,” said McFarland.

The investigation had been going on for less than 12 hours by this time.

McFarland said they informed Hobbs of his Miranda rights and that Hobbs continuously used his phone throughout the interview.

At this point McFarland said he was concerned the cell phone was used in the crimes he was investigating.

“The cellular telephones today store GPS location or cell phone…information in them that will pinpoint a location of that phone at a certain time if a call is being made or a text being sent, if data is going in and out of that phone,” said McFarland. “We did believe that the location information would be pertinent to the investigation during that time the alleged offenses took place and the location they took place at would show us possibly where that phone was at.”

McFarland said that during the interview they talked about the alleged victim and about interactions using telephones between Hobbs and the alleged victim. McFarland said he believed Hobbs was using his phone to communicate with the alleged victim.

Although McFarland told Hobbs he was free to go, Hobbs didn’t leave. Instead he continued to talk.

“I told Mr. Hobbs that we would like his cell phone and discussed some things about getting search warrants and things like that for the cell phone. Told him why we wanted his cell phone. He didn’t want to release it to us,” said McFarland.

Initially McFarland said he told Hobbs they were going to get a search warrant for his phone so initially he would have been allowed to keep it, “but while talking with him, while speaking with him, while going over some things with him, then putting it into perspective how easy it would be to get rid of the cell phone, damage the cell phone, remove data from the cell phone, I made the determination I was going to seize his cell phone at that time.”

McFarland said he wanted to seize the phone in order to preserve the evidence or any evidence that may be there on the cell phone.

“The cell phones today that store so much information on them, there’s anything you look at, anything you do it’s on your cell phone,” said McFarland.

McFarland said Hobbs handed him the cell phone. Once McFarland had possession of the phone, he removed the battery, which kept data from being transferred. McFarland said he did nothing to attempt to search the phone prior to obtaining a search warrant, and the following day Sgt. Ward obtained a search warrant to have the cell phone examined, and it was taken to Ohio BCI in London where they examined the cell phone.

John Scott, Fayette County assistant prosecutor, reiterated that the cell phone was not searched until the search warrant was obtained.

“The basis for seizing a phone is less than that of searching a phone,” said Scott, citing case law in Segura v. United States 468 U.S. 796 (1984).

“The Supreme Court did in fact state that different interests are implicated by a seizure than by a search,” said Scott, “and they recognized that generally less intrusive nature of the seizure and the warrantless seizures of property on the basis of probable cause in the time necessary to secure a warrant.”

Scott said that Supreme Court decision was followed in Ohio in the case State vs. Cunningham 2012 Ohio 2794.

“What this allows for is when an officer believes that the instrument in front of him is something that can be tampered with, that can be changed, that can be altered, that the evidence needs to be taken, then they can take it. The Ohio Supreme Court found that there is a legitimate interest in collecting and preserving evidence prior to the issuance of a search warrant,” said Scott.

Scott said seizing the phone was not a search, it is something less so, it is merely the taking of the property and holding it until they can obtain a search warrant.

Hobbs’s attorney disagreed, and said in closing that the seizure without a warrant is unreasonable.

“There was no warrant issued at the time of the seizure of my client’s personal property. It does happen to be a cell phone. Cell phones are tricky animals. Clearly in the last several years based upon the voluminous amount of data that they can keep,” said Koeffel.

But he said assuming there is some external circumstance that the detectives are going to justify or a lowering of the standards to get the cell phone without a warrant, they still can’t get around probable cause.

“At the time this report came in, it had nothing to with a cell phone, this was not a ‘sexting’ case. Merely because the lieutenant finds that many people have phones these days and they might be able to use GPS is a general rule, but nothing specific to Mr. Hobbs that his phone would be an instrumentality of the case so the fourth amendment applies equally to searches and seizures,” said Koeffel.

He said the fact that there was a seizure of property without a warrant cannot be argued, but was curious about how there was probable cause or exigent circumstances that would require its seizure.

“As it relates to probable cause, detectives made certain suppositions that there may be incriminating evidence on the phone—whereabouts of where he was on certain dates and where this activity allegedly occurred—but it’s an incoherent punch—it’s speculation and that does not rise to the level of probable cause. Assuming there is probable cause, you get into exigent circumstances. By getting into using GPS and not having any GPS triangulation, I find it very curious that that’s used as one of the bases. In terms of the destruction, I find that also quite curious because with BCI, as this court’s well aware, and this prosecutor’s well aware—you can’t destroy anything—it’s there—”

Here, Scott interjected an objection.

“I object to that, Your Honor,” said Scott, “He can’t know what we’re aware of—”

“—I’m taking this as argument. Alright you may continue,” said Beathard.

“I apologize,” said Koeffel. “But I am dealing with four life terms…so…the exigent circumstances argument has been laid out, it’s been submitted to the court, the state has had an opportunity to review and reply. I’ve looked at your local rules, it doesn’t say that they’re compelled to but…I don’t know why we didn’t get a reply. I’m not familiar with the Cunningham case. I’m not prepared to argue it one way or the other. I’d ask the court to strike that from the record before you because it wasn’t provided in compliance with local rule six.”

“I’m going to give everybody time to supplement their memorandums,” said Beathard.

On Aug. 10 Beathard overruled the motion to suppress and will submit his written entry prior to the jury trial date set for Sept. 27.

By Ashley Bunton

Reach Ashley at the Record-Herald (740) 313-0355 or on Twitter @ashbunton

Reach Ashley at the Record-Herald (740) 313-0355 or on Twitter @ashbunton